Harter v. Johnson

• Court: South Carolina Supreme Court
• Writing for the Court: COTHRAN, J.
• Citation: Harter v. Johnson, 122 S.C. 96, 115 S.E. 217 (S.C. 1922)
• Decision Date: 14 November 1922
• Docket Number: 11052.
• Parties: HARTER ET AL. v. JOHNSON ET AL.

115 S.E. 217

122 S.C. 96

HARTER ET AL. v. JOHNSON ET AL.

No. 11052.

Supreme Court of South Carolina

November 14, 1922

Appeal from Common Pleas Circuit Court of Allendale County; R. W Memminger, Judge.

Action by Mamie M. Harter and others against J. E. Johnson and others, executors of W. J. Young, deceased, and others. From decree confirming the report of the referee, plaintiffs and certain defendants appeal. Affirmed.

The report of the special referee is as follows:

In pursuance of an order of reference made in the above-stated case on the 8th day of July, 1921, whereby this cause was referred to me as special referee to take and report the testimony offered therein, together with my conclusions of fact and of law with leave to report any special matter, I beg leave respectfully to report:

(1) That subsequent to the commencement of the action, and upon petition of J. G. Murdock, the duly appointed guardian ad litem of the infant children of J. E. Young, deceased, to wit, Ruby Young, G. E. Young, O. L. Young, Roy Young, Harold Young, Hugh Young, James Young, Mary Young, W. E. Young, Carl Young, and J. C. Young, and by agreement of counsel in the cause, I made an order whereby the said infant children were made parties plaintiff in the action and their said guardian was authorized and required to appear and prosecute the same in their behalf, and the summons and pleadings were amended to conform to said order.

(2) That by agreement of counsel in the cause, Fairfax Library Association and Dr. John L. Folk were also made parties defendant in the action, and the summons and pleadings were amended to conform thereto.

(3) That all parties defendant in the action have appeared by counsel and filed their answers in the cause except F. M Young, who appeared and filed an answer in his own proper person, in which he alleges that he is a brother of William Jasper Young, deceased; that he is not participating in the cause of action set forth in the complaint; that he is not interested in the disturbance of the will of his said brother; and he leaves his rights subject to the determination of the court under the statute of distributions.

(4) That counsel for the various parties plaintiff and defendant in this cause, having agreed upon a statement of the pertinent facts underlying the issues herein, it thereby became necessary to take any testimony of witnesses or other documentary evidence, and my findings of fact herein will be predicated entirely upon the statements of fact as agreed upon by counsel, except where same has been modified by sustaining objections to certain agreed statements as being incompetent, and the said statements will be filed with this report.

(5) The objection to a part of the fourth stipulation of facts, to wit, relating to conversations between testator and Dr. John L. Folk during the lifetime of the testator, which is held to be incompetent is sustained. Pell v. Ball, Speers Eq., 48-82; Smith v. Heyward, 115 S.C. 163, 105 S.E. 281.

The objection to a part of stipulation No. 10 in the agreed statements of facts with reference to conversation between the testator and Dr. John Goode is sustained for the same reason. The objection to stipulation No. 15 is overruled for the reason that the facts therein stated are competent as tending to prove that the executors mentioned have accepted their trust, and said testimony does not purpose to be offered to throw light upon the intention of testator as expressed in his will.

(6) The issues in this case arise upon the will and codicil of Dr William Jasper Young, who resided at Fairfax, S. C., and who died leaving such last will and codicil, which has been duly filed and admitted to probate, and of which the defendants J F. Lightsey and others are the duly appointed and qualified executors.

By said last will and testament, Dr. Young, after making a number of specific bequests to certain nephews and nieces, and also to Fairfax high school district No. 44, and to Fairfax Library Association, gave and devised all the residue of his estate, real, personal, and mixed, "for the purpose of establishing, building and equipping a public hospital in the town of Fairfax for the treatment of white and colored patients," and his executors therein named were authorized and empowered "to carry out this provision of my will according to their best judgment."

The parties, plaintiff and defendant, except the defendants J. E. Johnson, E. L. Young, and J. F. Lightsey are the only heirs at law and distributees of the said Dr. Young, the testator.

The action is brought by the plaintiffs in behalf of themselves and such of the defendants as may come into this action and contribute to the costs and expenses thereof. The plaintiffs, after setting forth in the complaint the provisions of the will of Dr. Young, allege that the executors have not undertaken to carry out the provision of said will and codicil therein quoted, and that it would be improper for them to do so without first obtaining from the court a construction thereof as to the meaning and validity of said will and codicil.

The plaintiffs further allege that the provisions of said will and codicil are inoperative to pass title to said property out of said testator; that said provisions are too "uncertain indefinite, and incomplete to be effective as a disposition of property by will; that said provisions are null and void; and that the said William Jasper Young died intestate as to the property mentioned in said provisions; and that upon his death the same descended to and was inherited by the plaintiffs and defendants who are above named as heirs and distributees of said William Jasper Young."

The plaintiffs, therefore, pray judgment that the said will may be construed by the court, that the said provisions thereof be held invalid, and that the property, mentioned therein, be divided and distributed according to law.

The executors in their answer, after admitting that they have qualified as executors, as alleged in the complaint, and that the plaintiffs and defendants other than themselves, are heirs at law and next of kin of the testator, and that the excerpt from the will is correctly set forth in the complaint, deny each and every other allegation thereof.

By way of further answering the complaint, they allege that the testator died seized and possessed of a large estate, and that, under the terms of his will, they were intrusted with its due and proper administration, and that they have no interest therein except the performance and fulfillment of their duties in carrying out the desires and instructions of the testator contained in his said will.

They further allege that, in view of the provision and adverse interest claimed and the far-reaching consequence of the allegations of the complaint, they are conscious of their lack of power to act independently of the court's instructions, and they suggest to the court the propriety of construing said will to the end that the intention of the testator may be determined, and that they be duly instructed and authorized in the proper administration of said estate.

They therefore pray judgment that the intention of the testator and the powers conferred upon them be determined and declared by the court.

As above stated, the defendant F. M. Young, a brother of Dr. Young, by his answer alleges that he does not seek to disturb the will of his said brother but only claims such rights as may accrue to him under the statute of distributions. He is not, therefore, an active participant in seeking to avoid the will of Dr. Young, but, as I understand, in the event such will is declared to be inoperative, then he does not waive such rights as he may be entitled to under the statute of distributions.

It appears, therefore, that the real issues in this case, with the exception mentioned, are entirely between the executors of the will of Dr. Young, on the one hand, and his heirs at law or distributees, on the other.

I heard argument at Barnwell on the part of counsel for the respective parties upon the issues of law arising out of the substantial undisputed facts in the case. These arguments upon both sides were very full and exhaustive and showed great ability, learning, and research, and they have contributed very materially towards enabling me to arrive at what I consider to be the proper determination of the issues raised by the pleadings herein.

I will, therefore, first state the facts found by me and then my conclusions of law.

Findings of Fact.

I find the following to be the facts as agreed upon by counsel:

(1) That Dr. William Jasper Young, late of Allendale county, in the state aforesaid, departed this life on the 25th day of July, 1920, leaving a last will and testament, dated the 13th day of July, 1920, which has been duly admitted to probate and filed in the office of the judge of probate for Allendale county. That in and by said last will and testament, the testator appointed the defendants E. L. Young, J. F. Lightsey, and J. E. Johnson, all residents of Fairfax, in said county of Allendale, as executors of his said last will and testament. That the said testator made a codicil to his said last will and testament, dated the 18th day of July, 1920, which was also duly admitted to probate, together with said will.

(2) That the said defendants E. L. Young, J. F. Lightsey, and J. E. Johnson duly qualified as executors of said last will and testament and codicil thereto, and entered upon the discharge of the duties of their said office, and are now the duly qualified executors of said will and codicil.

(3) That, after providing for the payment of his debts, the said testator bequeathed to his three nieces, Virginia Durant, Edna Kearse,...